Africa (Nigeria): ECOWAS Court challenges vagrancy laws that target women

November 30, 2017

Many thanks to Benson Chakaya, an M.Phil candidate in the LL.M./M.Phil (Sexual & Reproductive Rights in Africa) degree program at the Center for Human Rights, Faculty of Law, University of Pretoria.  He also serves as National Coordinator for Right Here Right Now Kenya ​hosted by the ​Network for Adolescents and Youth of Africa.  We thank him for abstracting and commenting on the significance of this case:

Dorothy Njemanze & 3 Ors V Federal Republic of Nigeria, Suit No.: ECW/CCJ/APP/17/14  (ECOWAS Court, Abuja, Nigeria)  Decision of October 12, 2017.

Many countries in Africa have criminal law targeting sex workers, often accompanied by administrative law in many cases municipal bylaws against vagrancy that facilitate arbitrary arrests of women at night. Suspected sex workers (in many cases women) are rounded up by law enforcers and charged with non-criminal offenses such as loitering, vagrancy, congregating for the purposes of prostitution, public indecency, or disorderly behavior.  The recent ruling by Economic Community of West African States (ECOWAS) Court of Justice in the case of Dorothy Njemanze & 3 Ors v. Federal Republic of Nigeria,[1] is significant as it successfully mounts a challenge to vagrancy laws.

On different occasions, Dorothy Njemanze and three other women were abducted, assaulted sexually, physically and verbally, and unlawfully detained by Nigerian law enforcement officers.  They were arrested and accused of being prostitutes on the grounds that they had been found on the streets at night.  The four women, led by Njemanze, a Nollywood actress, filed a case at the West African Regional Court which centered on the violent, cruel, inhuman, degrading and discriminatory treatment the women suffered at the hands of law enforcement agents in Abuja, Nigeria.

The Njemanze case bears some similarities to the Kenyan High Court case of Lucy Nyambura & Another v. Town Clerk, Municipal Council of Mombasa & 2 Others (2011)[2] in that the petitioners in the Kenyan case were also arrested and charged with the offence of “loitering in a public place for immoral purposes,” simply because they were found on the streets at night. The charges essentially criminalize any woman who ventures outdoors after dark. However, in the Kenyan case, the High Court failed to find the action of law enforcers as discriminatory and a violation of the petitioners’ rights.

By contrast, the ECOWAS Court found the arrest of the four petitioners to be unlawful and violated their rights to dignity and liberty, and their right to be free from cruel, inhuman or degrading treatment. The Court affirmed the provisions of the United Nations’ Convention on Elimination All Forms of Discrimination Against Women (CEDAW), when it found that the action of Nigerian law enforcement officers constituted gender-based discrimination. The Court determined from the submissions showing that the operation was systematically directed against only the female gender an indication and evidence of discrimination.   The finding is significant for women because it reiterates State Parties’ obligation and responsibility as codified in CEDAW to adopt laws, administrative and policy measures to prevent gender based discrimination.

According to the Court, “Prostitution is claimed to be a crime in the laws of the Defendant. However, it takes two persons to engage in such criminal activity. There is no law that suggest[s] that when women are seen on the streets at midnight or anytime thereafter, they are necessarily idle persons or prostitutes.  If it were so, it ought to apply to all persons irrespective of sex”.  In this quote, a blow to the discriminatory application of prostitution and vagrancy laws, the Court rejects the narrative, fostering gender inequality, that female commercial sex workers are directly criminally liable, while their male counterparts, if liable at all, can only be so indirectly as accomplices or conspirators. This narrative has often reinforced harmful social prejudices against women.

The judgment also affects commercial sex workers, especially those who work at night. Although the Court did not make a pronouncement on the legality or illegality of commercial sex work, it is significant that it found no crime in women being on the street at night, whether they are sex workers or not.  The Court found the arrest a violation of the Plaintiffs’ right to liberty or free movement which is a fundamental human right.  The Court denounced the gender stereotyping of women found on the street at night as prostitutes and declared that such verbal abuses violated the right of these women to dignity. This denunciation unfortunately perpetuates the stigma that has traditionally been directed against sex workers.

In this context, the Court did not issue a direct order regarding existing laws prohibiting prostitution.  In finding that the Defendant failed to provide sufficient evidence linking the Plaintiffs with prostitution, the Court exposes the difficulty of collecting evidence for the crime of prostitution.  This suggests an opportunity to challenge the law on prostitution in the fact that the law violates the right to privacy.  Given the intimate nature of sex, privacy is a major issue in criminalizing sex work.  Collecting evidence to support sex-work-related charges often involves bedroom snooping and interfering with the privacy of the sex workers and their clients.

A significant milestone that sets the ECOWAS ruling apart is the pronouncement of a violation of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), is indeed a first in an International Court. The Court found that there were multiple violations of article 2 calling on States to combat all forms of discrimination against women, article 3 that provides for the right to dignity and to the recognition and protection of women human and legal rights. There was further violation of article 4 on the Rights to Life, integrity and security of the person, article 5(d) on protection of women from being subjected violence, abuse and intolerance. The denial of access to justice and equal protection before the law and access to remedy was a violation of articles 8 and 25 respectively.

This ruling by the ECOWAS Court is important to judges, lawyers and law scholars as it sets the pace for challenging the often vague vagrancy laws.  By finding the action of the law enforcement officers to have violated fundamental human rights, the Court in other words has questioned the legality of vagrancy laws.  The ruling by ECOWAS Court, therefore, piles more pressure on African States to repeal the overly vague and overbroad vagrancy laws that harass and abuse women, including female sex workers. Already, the CEDAW Committee has called upon States Parties to take appropriate measures, including legislation, to suppress exploitation of women in sex work.   Overall, the ECOWAS Court’s ruling is a clear call to these States to respect fundamental rights of women to liberty, dignity and self-determination.

[1] Dorothy Njemanze & 3 Ors V Federal Republic of Nigeria: SUIT NO: ECW/CCJ/APP/17/14  (ECOWAS Court, Abuja, Nigeria)  Decision of October 12, 2017.

[2] Lucy Nyambura & Another v. Town Clerk, Municipal Council of Mombasa & 2 Others [2011] eKLR, Petition No. 286 of 2009 Kenya, High Court. Decision online.
Case summary and analysis for Legal Grounds III

Other African cases, summarized online: 
Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts  (Pretoria, Pretoria University Law Press (PULP), 2017), and previous volumes.
Printed edition of Legal Grounds III available from PULP.
Previous volumes PDF online at CRR.
Legal Grounds III, online edition with updates and links to decisions.


Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca For Program publications and resources, see our website, online here. TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.


Spain: “Gender in Constitutional Discourses on Abortion,” by Blanca Rodríguez-Ruiz

June 29, 2017

Congratulations and thanks to Professor Blanca Rodríguez-Ruiz,  who teaches constitutional law at the University of Seville in Spain, for her useful article, recently published in the international journal, Social & Legal Studies:

Blanca Rodríguez-Ruiz, “Gender in Constitutional Discourses on Abortion: Looking at Spain from a Comparative Perspective,” Social & Legal Studies 25.6 (Dec. 2016): 699-715.
PDF     Download text      Author publications – English and Spanish

Abstract:   In as far as the regulation of abortion deals with issues like how and to what extent can women’s capacity to gestate and give birth be controlled, and by whom, any discourse on abortion necessarily reflects a construction of women’s citizenship, hence of gender.  The question is, which is the ruling construction? Behind non-legal discourses that focus on human life and public power’s duty to protect it, there lies the modern construction of gender that articulates women’s passive citizenship within the state.  This is also true of confrontational discourses that construct women and the foetus as potential adversaries. Both discourses are traditional in continental Europe.  Yet, they are being superseded by an understanding of abortion from the perspective of women’s active citizenship. Spanish Organic Act 2/2010 stands as part of this trend.  Not surprisingly, governmental attempts to reinstate women’s passive citizenship in this matter have met stark resistance.   PDF.     Download text.

Source:  “Regulating Abortion: Dissensus and the Politics of Rights,” ed. Siobhan Mullally,  symposium issue of Social & Legal Studies: An International Journal 25.6 (Dec 2016)       Introduction, pp. 645-650.

See also:
Catherine O’Rourke, “Advocating Abortion Rights in Northern Ireland: Local and Global Tensions,” Social and Legal Studies 25(6): 716-740.  PDF and abstract       Submitted text

Claire Murray, “The Protection of Life During Pregnancy Act 2013: Suicide, Dignity and the Irish Discourse on Abortion“, published in Social and Legal Studies 2016,  25(6): 667-698     PDF and abstract     Accepted text.
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The REPROHEALTHLAW Blog is compiled by the International Reproductive and Sexual Health Law Program, Faculty of Law, University of Toronto, Canada,  reprohealth*law at utoronto.ca.   For Program publications and resources, see our website, online here.
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Northern/Irish Feminist Judgments – re-imagining court decisions

May 26, 2017

Northern/Irish Feminist Judgments: Judges’ Troubles and the Gendered Politics of Identity, edited by Máiréad Enright, Julie McCandless and Aoife O’Donoghue (Oxford: Hart, 2017) (available here) is the most recent of a series of insightful studies on re-imagining court decisions from feminist perspectives.[1]    The volume includes rewrites and commentaries on 26 cases from Ireland or Northern Ireland, including:

Attorney General v. X, [1992] I.E.S.C. 1, (Supreme Court of Ireland) had decided that an attempt to prevent a 14-year old girl who was pregnant as a result of being raped, from traveling from Ireland to England in order to access abortion care was not justified.  Actual decision online.

In Northern/Irish Feminist Judgments. Ruth Fletcher rewrites the Irish Supreme Court’s landmark decision in the X case.Sheelagh McGuinness writes a commentary on it, explaining the ways in which Fletcher J. illustrates how the Eighth Amendment to the Irish Constitution (acknowledging the “right to life of the unborn… with due regard to the equal right to life of the mother…”) is an instrument of gendered harms.  McGuinness contrasts the “progressive constitutionalism” of Fletcher J.’s reasoning with the “conservative constitutionalism” of the original judgment. Fletcher J. crafts a judgment that considers the text of the Eighth Amendment, examines the evidence of the substantial difference between the contingency of unborn life and the life of the pregnant woman that sustains that life to decide, consistently with the original judgment, that X is entitled to an abortion. She tries to rise above her own partiality by putting herself in X’s shoes to explain how her pregnancy in such circumstances would impose “an impracticable burden on her rightful life.”
ONLINE:  Ruth Fletcher’s imagined decision: working paper version
Sheelagh McGuinness’s commentary: peer review version

McGee v. Attorney General,[1974] I.R. 284 (Supreme Court of Ireland), which had overturned a criminal ban on the importation of contraceptives into Ireland. Actual decision online.

Emilie Cloatre and Máiréad Enright write the commentary on Enright’s rewriting of the Irish Supreme Court’s decision in the McGee case, where Enright J. reached the same decision but for different reasons. They explore the ways that Enright J. acknowledged Mrs. McGee’s experiences in trying to access effective contraception to enable her to plan her family in ways that did not seriously risk her life.  Of particular note is the way in which Enright J. elaborated how Mrs. McGee’s right to freedom of conscience was a basis for overturning the importation ban: “There can be no clearer example, in my view, of the exercise of constitutionally protected conscience than Mrs. McGee’s deliberate breach of a provision of the criminal law that imposes a particular set of moral principles on the citizenry.”

[1] Northern/Irish Feminist Judgments-Judges’ Troubles and the Gendered Politics of Identity, ed. Máiréad Enright, Julie McCandless and Aoife O’Donoghue (Oxford: Hart, 2017) (book details).  Other insightful studies on re-imagining court decisions from feminist perspectives  include:  Rewriting Equality (2006) 18(1); R. Hunter, C.McGlynn and E. Rackley (eds.) Feminist Judgments: From Theory to Practice (Oxford: Hart, 2010); H. Douglas, F. Bartlett, T. Luker and R. Hunter (eds.), Australian Feminist Judgments: Righting and Rewriting Law (Oxford: Hart, 2015); K. Stanchi, L. Berger and B. Crawford (eds.), U.S. Feminist Judgments: Rewritten Opinions of the United States Supreme Court (Cambridge: CUP, 2016).


REPROHEALTHLAW Updates, June 2016

June 14, 2016

SUBSCRIBE TO REPROHEALTHLAW: To receive these updates monthly by email, enter your address in upper right corner of this webpage, then check your email to confirm the subscription.

DEVELOPMENTS

“Ireland’s abortion laws subjected a woman to cruel, inhuman and degrading treatment, according to a  landmark decision from the United Nations Human Rights Committee.”
Center for Reproductive Rights, CRR press release.   UN Press Release, June 9, 2016Newsmedia reportsDecision CCPR/C/116/D/2324/2013 online.

EDUCATIONAL OPPORTUNITY IN AFRICA – SCHOLARSHIPS

Master’s degree (LLM/MPhil) in Sexual and Reproductive Rights in Africa,  University of Pretoria, South Africa, Two-year program starts in Jan. 2017.   Blended learning course with online interaction and residential block-weeks in Pretoria, South Africa. Two contact sessions will be scheduled every year (four contact sessions over the two year period).   Apply by 31 Oct 2016. Up to 15 full scholarships available for African citizens.  African LLM/MPhil details.

RESOURCES

[abortion, U.K. and U.S.] “With advances in embryo research, it’s time to bring abortion law out of the Victorian age,” by Sally Sheldon. Kent Law School, Kent University, Canterbury, BioNews 853 (May 31, 2016)  Article online.

[conscientious objection – institutions] Contracting Religion, by Elizabeth Sepper,  in:  Law, Religion, and Health in the United States, ed. Holly Fernandez Lynch, I. Glenn Cohen, & Elizabeth Sepper (Forthcoming: Cambridge Univ. Press, 2017). (Draft chapter online).

[fetal abnormality, microcephaly, Brazil]  Special issue of Cadernos de Saúde Pública 32.5 (2016) Rio de Janeiro includes a special thematic section:
“Zika and Pregnancy”  Table of Contents with links to translations.
— “Zika virus and women,” by Debora Diniz (English and Portuguese)
— “The debate on abortion and Zika: lessons from the AIDS epidemic,” by Thais Medina Coeli Rochel de Camargo, (English and Portuguese)
— “Women’s reproductive rights and the Zika virus epidemic,” by Jacqueline Pitanguy (English and Portuguese)
— “Comment on the paper by Pitanguy,” by Florencia Luna (English and Spanish)
— “Ensuring a rights-based health sector response to women affected by Zika” by Paige Baum, Anna Fiastro, Shane Kunselman, Camila Vega, Christine Ricardo, Beatriz Galli, and Marcos Nascimeno (English and Portuguese).
— “Comment on the article by Baum et al.,” by Ana Cristina González-Velez
(English and Spanish)
— “Zika and reproductive justice,” by Alexandra Minna Stern (English)

[fetal abnormality, microcephaly] “Sexual and Reproductive Health and Rights in the Time of Zika in Latin America and the Caribbean,” by Ana Langer, Jacquelyn M. Caglia andClara Menéndez, Studies in Family Planning 47.2 (June 2016): 179-181.  Online version.

Law and Policy updates are issued monthly by International Campaign for Women’s Right to Safe Abortion.  To receive the electronic newsletter, click “Join the Campaign

[maternal deaths, Uganda]: “Why the Constitutional Court should rule on the right to health,” by Michael Addaney in AfricLaw blog,  June 3, 2016  AfricLaw blogpost,

[stereotyping] “Emerging from the Shadows: Substantive Equality and Article 14 of
the European Convention on Human Rights,” by Sandra Fredman, Human Rights Law Review 16 (2016): 273–301   Advance access.

US-focused news, resources, and legal developments are available on Repro Rights Prof Blog.  View or subscribe.

NEWS

[El Salvador]  Sentenced to 40 Years After a Miscarriage, Maria Teresa Rivera was freed May 20,2016 News report in English.   News report in Spanish

JOBS

Links to other employers in the field of Reproductive and Sexual Health Law are online here

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Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca For Program publications and resources, see our website, online here. TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.

 


REPROHEALTHLAW Updates: Publications, News and Jobs

November 26, 2015

 REPROHEALTHLAW-L
November 26, 2015

SUBSCRIBE TO REPROHEALTHLAW:  To receive these updates monthly by email, enter your address in upper right corner of this webpage, then check your email to confirm the subscription.

PUBLICATIONS

Abortion Law in Transnational Perspective:  Cases and Controversies, ed. Rebecca J. Cook, Joanna N. Erdman and Bernard M. Dickens, 16 chapters.  University of Pennsylvania Press, 2014, 482 pages. Introduction by the editors. Table of Cases online  Table of ContentsPurchase from U Penn PressAhora disponible en español.

[abortion, South Africa]  Abortion Under Apartheid: Nationalism, Sexuality, and Women’s Reproductive Rights in South Africa, by Susanne Klausen,  (Oxford University Press, 2015) the first full-length scholarly study of the history of abortion in an African context.    Table of Contents and overview from OUP.   Abstract from OUP Canada    Review in The Daily Maverick.

[abortion rights] “How to talk about abortion: A guide to rights based messaging” by IPPF. 32-page guide.

[Africa]  Litigating the Right to Health in Africa  Challenges and Prospects,  ed.  Ebenezer Durojaye  (Ashgate: London 2015).  Abstract, Table of Contents and Introduction (“Look Inside”)   50% discount code:  50CZP15N

Colombia – plan to decriminalize abortion within 12 weeks’ gestation.  Article Nov 11, 2015.

[conscience] Drawing the Line:  Tackling tensions between religion and equality, by INCLO.  56-page report

Spanish resources available online:
—Estereotipos de Género:  Perspectivas Legales Transnacionales, por Rebecca J. Cook y Simone Cusack  (Bogota: Profamilia, 2010)   Libro Espanol en PDF.     Tabla  de Contenido     [English:] Gender Stereotyping: Transnational Legal Perspectives

Salud reproductiva y derechos humanos: Integración de la medicina, la ética y el derecho, por Rebecca J. Cook, Bernard M. Dickens y Mahmoud F. Fathalla (Bogota, Profamilia, 2004) Libro Espanol en PDF[English:] Reproductive Health and Human Rights: Integrating Medicine, Ethics and Law  (Oxford, 2003).

Other Spanish publications from the International Reproductive and Sexual Health Law programme.

[sterilization] Robbed of Choice:   Forced and coerced sterilization experiences of women living with HIV in Kenya, by F. Kasiva
48-page report.  10 minute video.

[violence against women] ‘Bridging the Divide’: An Interview with Professor Rashida Manjoo, UN Special Rapporteur on Violence Against Women – Springer.  Abstract and interview text: Temporary open access.

NEWS:

Australian home-based medical abortion now available  Tabbot website.

China ends one-child policy after 35 years.  Guardian newspaper.

Ireland:  Labour to seek cross-party consensus on abortion legislation — Proposal to repeal eighth amendment (equal rights for fetus) to be key demand for party after general election.  Irish Times article.

US-focused news, resources, and legal developments are available on Repro Rights Prof Blog. View or subscribe.

JOBS

Guttmacher Institute (Advancing Sexual and Reproductive Health and Rights  through research, policy analysis and public education) is hiring:  State Issues Assistant, Research Assistant, and Communications Associates.  Guttmacher jobs

Links to other employers in the field of Reproductive and Sexual Health Law are online here

Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca   For Program publications and resources, see our website, online here.
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TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.